May 29, 2026
U.S. DOL Publishes 4 New FLSA Opinion Letters
At 4:15 p.m. ET on a Friday afternoon, the U.S. Department of Labor (DOL) announced the publication of four new opinion letters responding to questions under the Fair Labor Standards Act (FLSA). Here’s a quick summary.
May an FLSA exempt employee perform additional work in a secondary role at an hourly rate, and if so, what overtime implications may arise? Yes, in this case. The work performed in the secondary (non-exempt) role comprised 23% – 38% of the employee’s total weekly hours. So, the “primary” duties performed each week were exempt. In addition, when an employer pays an employee on a salary basis, the employer may provide the employee with “additional compensation” without violating the salary-basis requirement. (FLSA 2026-5)
When are pre-shift or preliminary activities compensable work and, when is an employer’s practice of rounding employees’ clock-in time to their scheduled shift start time is permissible? If the pre-shift activities are “integral and indispensable” to performing the principal job duties, they are compensable. Other pre-shift activities, such as waiting in line to clock in and out, are not, provided they occur before an employee’s first principal activity of the day or after the last principal activity of the day. As for rounding practices, the employer uses 7-minute increments. A 6:53 a.m. clock-in is rounded up to 7:00 a.m. and a 7:07 p.m. clock-out is rounded back to 7:00 p.m. Rounding practices are permitted so long as they “will not result, over a period of time, in failure to compensate
the employees properly for all the time they have actually worked.” A rounding practice must both be neutral on its face and average out over time, so it does not consistently favor the employer. Thus, it depends. (FLSA 2026-8)
Is the time an employee spends voluntarily traveling off-site for a meal that includes traversing the employer’s premises and passing through a controlled access entry and exit during a 30-minute unpaid meal break compensable under the FLSA? No. The DOL writes, “while your letter indicates that you believe that 30 minutes is insufficient time for an off-site meal due to the physical characteristics of the employer’s facility (e.g., distance to the parking lot and waiting to pass through security, among other things), you nevertheless have the option to leave the employer’s premises during the meal period—which, as explained above, is not required by the Act.” (FLSA 2026-7)
I found this letter most interesting as I have not come across this scenario before. This deals with the payment of a non-discretionary bonus to a non-exempt employee, such as a sales or performance bonus, that is calculated based on the employee’s total compensation for the period covered by the bonus rather than a flat or fixed amount. The DOL writes, “a bonus that increases an employee’s total earnings by a fixed percentage increases both straight time and overtime wages by the same percentage, and thereby includes proper overtime compensation as an arithmetic fact…such percentage of total earnings bonuses ‘satisfy in full the overtime provisions of the Act and no recomputation will be required.’” (FLSA 2026-6)
